In the first few days of July I began writing a post about the report of the Foreshore and Seabed Review Panel. Due to absurd busi-ness* I never got it finished. Since the government has this week responded to the review panel’s findings, two months after it undertook to do so, by kicking the issue to touch, I figure now is as good a time as any to examine the issue again.

First, let me begin by clarifying my position on the issue and the government’s handling of it. I have been vocal in my support of the māori party’s willingness to work with National in government, and their willingness to accept a range of lesser policy concessions in service of the repeal of the Foreshore and Seabed Act — not so much on the basis that it (the repeal) will necessarily result in a greater quantum of economic or social benefit than those other concessions might have, but on the basis that the decision is for Māori to make. The māori party, (it is often repeated, mostly by disgruntled Labour supporters) does not represent all Māori, and this is true — but inasmuch as it has kaupapa Māori foundations, it has a stronger philosophical claim to representat those māori who share that kaupapa basis than any other party in parliament; and on this issue in particular, a stronger mandate than the Labour party.

Indigenism

The striking thing about the review, and perhaps the reason for the tardy and incomplete response from the government, is that it is grounded in indigenist principles. It’s not the only indigenist policy document the government has kicked to touch in recent months: the NZGB recommendation that the spelling of Wanganui be corrected to Whanganui is another such thing. Indigenism, here used, is not so much ethnic nationalism (as it is usually given to mean) as a non-eurocentric philosophical basis; one which does not presuppose a Pākehā worldview or rules of engagement — a necessary quality in that sort of political action, but not in itself a sufficient quality. Linda Tuhiwai Smith’s book Decolonising Methodologies provides a clear explication of the practice of indigenist and indigenising research in the Aotearoa-New Zealand context.

The indigenist position derives largely from the choice of panellists (two of whom are Māori scholars) and from the scope of the inquiry, which explicitly gave the panel a mandate to assess the extent to which the FSA “effectively recognises and provides for customary or aboriginal title and public interests” in the foreshore and seabed. This accepted the facts of NZ’s constitutional and legal history and jurisprudence from the Treaty of Waitangi, the Native Land Court and more recently the Māori Land Court, the Waitangi Tribunal, and the Court of Appeal in the Ngāti Apa case: that there are customary rights; they are not a legal fiction or a ‘simple nullity’ as Prendergast had it. These were facts which Labour, claiming to be the natural party of Māori representation, needed a court to tell them — and they reached for the nuclear option of legislation when the court did so. This change is important because it lays the tracks for future legislative and legal events: because the review was conducted from an indigenist basis, the resultant action must necessarily take on an indigenist hue. This was the complaint levelled by all of the usual suspects when the panel was named — as if the job of assessing a dispute over historical rights and legal process could shomehow be neutrally conducted by those whose institutions were responsible for its ongoing rancour.

More than ‘One Nation’

The indigenist perspective embedded in the review process and its frame has resulted in the forthright rejection of “all New Zealanders” rhetoric and the homogenisation which that discourse implies. Diversity exists; different groups have different rights in custom and culture and in law; that reality needs to be carefully managed, not ignored or subsumed by a system which says “we all have the rights I think we should have, and not those which you value”. This is the central foundation on whcih the report and its recommendations stands. In the words of the panel:

the very real problem that arises from the populist notion of “one people” under one law is quite simply that it does not recognise – indeed denies – the fact of the ethnic, cultural and social diversity of our population, which we would argue considerably enriches rather than divides our society. [...] We are acutely aware that the notion of “one people” is, in the main, rejected by Māori. Māori say that we are simply two peoples comprising one nation. They see the notion of “one people” emboldened within a western paradigm that is constructed upon those premises and values which underpin the majority culture, the eﬀect of which is to deny their existence. Māori collective property rights have rarely been treated in law in the same way as have non-Māori property rights.

Indeed they haven’t. And there are different conceptions of property rights issues in play here — rights of heredity and customary usage. Submitter Edward Ellison on behalf of Te Rūnanga o Otakau:

What we’re talking about is the mana or rangatiratanga rather than what we might term title or ownership as in the narrow European concept. It just doesn’t do it justice and it can be easily turned against us.

It’s the same issue which resulted in widespread alienation of land in the half-century following the Treaty’s signature: Western legal paradigms of ownership didn’t recognise collective landholdings, so they assumed that lands were the possessions of a given rangatira (or just someone who claimed to be rangatira) to dispose of. The panel, again:

More importantly, throughout this country’s history Māori advocacy and claims have not been made on the basis of ethnicity but of inherited rights – just as non-Māori have made claims and had them met on the basis of inherited rights. Indeed, property and customary rights are not argued on the basis that people are ethnically Māori, but because they have historically inherited rights to speciﬁc areas and resources – in the same way as a non-Māori landowner is able to pass down his or her land and associated resources to their children, and so forth.”

This illustrates a point of framing which has shot clear through the discourse around the issue: most discussion is about entitlement or claims under the Treaty of Waitangi, underlined by the fact that tangata whenua have had to go cap-in-hand to the Crown and its authorities. This isn’t a matter of claims or entitlements: it’s about securing rights to resource access and exploitation which never lapsed. The ‘troughing modies’ argument simply ignores the fact that parts of the coast owned by private concerns can and frequently are passed undisturbed down through successive generations of landowners. Just because the resources in question have been handed down collectively in accordance with tikanga, and just because the holders of rights to those resources refuse to accept a Western paradigm of property rights, the claim should be no less valid. This is not to say, however, that the matter is strictly one of property rights. Fundamentally it’s a matter of adherence to the Treaty, which guaranteed tangata whenua the right to their cultural practices (part of ‘tāonga katoa’ from Article 2) which permit them to consider the issue in ways not limited to a strict property-rights interpretation imposed from without.

The excerpts above demonstrate a strong critique of the ‘one nation’ rhetoric, and the falsity of that discourse, in which a culture which is dominant both in terms of numbers and of power draws artificial and appropriative distinctions between transfer of rights and property which are deemed legitimate and those which are deemed illegitimate. This is the discourse which gave rise to Iwi/Kiwi and to the Foreshore and Seabed Act; they are cut from the same cloth. It is the discourse, and the self-serving assimilationism it represents against which the critique is levelled; not against the Pākehā establishment except inasmuch as the two are indistinguishable. Those Pākehā taking umbrage at the critique should, therefore, examine their own role in and allegiance to that discourse and the system which bred it; those who reject it and what it stands for have no cause for alarm from the review process.

Divisions within

But what’s curious is that indigenism, and indigeneity, were central to the review, and to the issue and its future solutions, but ethnicity was not itself a determinant of position among submitters to the review. The panel found that

It was not possible to categorise the submissions by ethnicity in a reliable manner. While provision was made for submitters to specify their ethnicity, this option was not always used, or people elected more than one ethnicity. In any case, ethnicity is not necessarily determinative of viewpoint; some Māori submitters tended towards what might be termed a “Pākehā world view”.

The Foreshore and Seabed dispute is not just a dispute between Māori and Pākehā, as Don Brash and Michael Laws and Chris Trotter would have you believe: the divisions are as much within Pākehā society and Māori society as between them. A ‘clash of civilisations’ paradigm here obscures what’s really happening, it does not illuminate it.

I’ll look more closely at this point, and its cultural and constitutional ramifications, in a future post (when I get time). To be continued.

L

* The same busi-ness which has rendered my posts rare and largely prevented me from participating in the frequently-excellent discussions which have emerged in response to them. Please read my absence as an interested ‘points noted’, and please don’t let my scarceness dissuade you from continuing as you have been.

The Foreshore and Seabed dispute is not so much a dispute between Māori and Pākehā, as Don Brash and Michael Laws and Chris Trotter would have you believe: the divisions are as much within Pākehā society and Māori society as between them. A ‘clash of civilisations’ paradigm here obscures what’s really happening, it does not illuminate it.

But there is still a clash between Pakeha and Maori perspectives.

Take property rights. On the Left we have – OMG Maori won’t be able to sell the beaches. On the Right – OMG Maori will be able to sell the beaches. The same pre-occupation but not something that is central to Maori concerns.

Similarly with customary title vs access to beaches. It’s only in the Pakeha world where these are seen as inherently mutually exclusive and in dire need of legal redress.

Yes, I don’t mean to suggest that there are no inter-cultural problems to resolve ehre: there manifestly are. But they’ve been strongly foregrounded, to the obscurement of the important intra-cultural disagreements which exist.

Take property rights. On the Left we have – OMG Maori won’t be able to sell the beaches. On the Right – OMG Maori will be able to sell the beaches. The same pre-occupation but not something that is central to Maori concerns.

Quite right. And if you switch ‘left’ and ‘right’ in those two statements they remain equally true — forthright propertarians arguing that tangata whenua should have full rights to sale or privatisation, while some on the left favour the wholesale expropriation of the takutai moana by the Crown. It doesn’t break cleanly along any sort of lines; neither ideological nor ethnic.

Those who argue the issue is a clash of civilisations should be able to point to these disputes being internally reconciled. They can’t, because they’re not.

Similarly with customary title vs access to beaches. It’s only in the Pakeha world where these are seen as inherently mutually exclusive and in dire need of legal redress.

I think the fact that the issue breaks so uncleanly shows that there is a dire need for reform in this area — even if it’s just so people know where they stand. Incidentally — and this will be the topic of the second post — I think the multifractious nature of the divisions represents a wonderful opportunity, but one which requires an almost unprecedented degree of political goodwill and trust to make use of. I’m not sure that goodwill and trust exists, though, and I am not encouraged by the early positioning moves by the major political actors.

These were facts which Labour, claiming to be the natural party of Māori representation, needed a court to tell them — and they reached for the nuclear option of legislation when the court did so
I think Labour knows that it is not the natural party of Maori representation. More importantly, the public is realising that it isn’t either. And looking at historic gains for Maori, many of them happened under National, and those that happened under Labour were done under majoritan consent. After the Treaty of Waitangi Act was passed, Matiu Rata left Labour in disgust. Would that have happened within a “natural party of Maori representation”?

MikeNZ on November 3rd, 2009 at 17:44

I take the one law for all position.

We all own the Seabed and foreshore (who are citizens) equally together and the govt administers it on our behalf.
That they can instruct someone to do so other than a ministry is within their power assuming we agreed.
That doesn’t change the position that all Kiwi citizens own it equally collectively.

I reject completely the concept of indigenous people having superior rights before other peoples or ethnos.
Hence the Tangata Whenua that so many espouse.

We are all equal citizens no matter how our forebears (if any) got here or the manner that they did.

My position is that Mr and Mrs Chin from China who’ve been here 4 yrs and the Stephens who’ve been here since 1928 and the Rawiti’s who’s family were on the 3rd Waka are all equal citizens as long as they carry the NZ passport.

The Treaty of Waitangi does not negate that and it is rightly in the Museum of Te Papa.

Neil on November 3rd, 2009 at 17:55

My impression is that Labour’s attitude is still “hey, you owe us”.

I actually supported Labour over this back then and though I now think they, and me, made a mistake I think it was an honest mistake. Helen Clark is an honourable person and I don’t believe for a moment her actions were about appealing to bigots.

For that support I copped a bit of flack on the home front.

But there’s a quid pro quo. If one makes such a stand as on customary title that is at odds with general Maori sentiment then I think one must show good will in other ways and for me Labour failed badly by not supporting the Maori TV bid for the RWC coverage.

It would not have made up for things but it would have showed willing. Instead we had Labour trying to ride a wave of popular discontent with a Maori-wasting-taxpayers-money line. A wave that never materialised.

Which is interesting in itself. Key might be lucky and find public sentiment not all that opposed to a deal with Maori.

Eoipso on November 3rd, 2009 at 18:58

If I can muddy the waters even more for you Lew.

The initial land purchase of Auckland by George Clarke from Ngatiwhatua in 1840, was a triangular block, extending along the foreshore from Hobson Bay to Cox’s Creek and inland to Mt Eden. At the time, the English officials had no cultural recognition of foreshore and seabed ownership.

The idea of Foreshore and Seabed ownership arrived much later, for both parties.

Neil on November 3rd, 2009 at 19:40

and right on queue Labour show their new colours -

“I remember when Labour was on 14% and if NZ First did what it promised then five months later we would have been in government.”

It should be clear that I don’t think Labour’s claim to being the party of Māori has much merit (although it once did); my comment is really a critique of Labour’s assumption that because lots of Māori voted for them and they had an ongoing agreement with Ratana, they could do as they pleased.

MikeNZ,

We all own the Seabed and foreshore (who are citizens) equally together and the govt administers it on our behalf.
That they can instruct someone to do so other than a ministry is within their power assuming we agreed.
That doesn’t change the position that all Kiwi citizens own it equally collectively.

This roughly describes the status of the takutai moana post-FSA — although, I might add, not entirely, since there are some parts of it owned and controlled exclusively by private interests. You’re right in saying that the government of the day can assign the task of managing that resource to anyone and that that doesn’t change the ownership, but what you’re missing is that the government can also change the ownership with the simple passage of a bill. The foreshore and seabed came to be in public ownership after the Crown expropriated it from people who had a legitimate legal claim to test because the risk of them succeeding in that claim was politically untenable. This was unacceptable to a large enough proportion of the electorate that we now have a new government with a mandate to rectify the situation. That’s the deal with government ownership. But the strategic purpose of all those who have a genuine concern about the status of the foreshore and seabed isn’t to play capture the flag with it, changing the scheme every three years on whim, but to forge an enduring accord as to its status. This looks increasingly likely to be a mutual-second-best solution.

I reject completely the concept of indigenous people having superior rights before other peoples or ethnos.
Hence the Tangata Whenua that so many espouse.

They don’t have superior rights by dint of being indigenous: they have pre-eminence guaranteed by a Treaty between sovereign powers as a consideration for other rights granted and guaranteed in exchange. Put very plainly, the Treaty of Waitangi was the only thing between Hobson’s settlers and twenty times their number of well-armed, well-supplied, ruthless warriors who controlled every inch of the place. It was the only legal instrument which gave settlers any rights at all. If the crown hadn’t wanted to guarantee tangata whenua the rights accorded by the Treaty of Waitangi, they needn’t have offered it. But they did, and those groups to whom those rights were guaranteed are now entitled to insist on their due. Hobson didn’t write an expiry clause in, after all.

We are all equal citizens no matter how our forebears (if any) got here or the manner that they did.

This is true. Again: rights don’t accrue to tangata whenua because they’re tangata whenua; they accrue because of a quite specific agreement which guaranteed them, among other things, rights to ‘tāonga katoa’, translated in English as ‘lands and possessions’ and basically meaning ‘all that you value’. The claim iwi and hapū make to the foreshore and seabed now isn’t some airy idea of special privileges; it’s access to resources of value passed down through generations. This is why it accrues at the hapū (family) level, not at the iwi (tribe) level. Do you really think that people shouldn’t be able to pass on their lands and possessions (not to mention their family traditions and language and so on) to their descendants?

My position is that Mr and Mrs Chin from China who’ve been here 4 yrs and the Stephens who’ve been here since 1928 and the Rawiti’s who’s family were on the 3rd Waka are all equal citizens as long as they carry the NZ passport.

Indeed. But do Mr and Mrs Chin gain an entitlement to the lands and possessions of Mr and Mrs Stephens or Mr and Mrs Rawiri by virtue of that equality? Do they get to share in the benefits of an agreement which favours the Rawiris before they arrived just because ‘we’re all equal now’? Does the agreement made by the Rawiris suddenly lapse because some new people are in the picture, or because it’s now somewhat tricky to maintain? And if so, what consideration is due the Rawiris for that agreement lapsing?

If you believe in standing by one’s agreements you can’t just unilaterally decide one has no currency — you can’t just decide to stop paying your mortgage and expect your house to not be sold from under you; you can’t just cheat on your spouse and expect them to not leave you. I say to you, as I’ve said to plenty of others: if you find the terms of the treaty too onerous, your recourse is to offer the signatories’ descendants whatever inducements you can to abandon those terms and adopt new ones.

And it looks like that’s what the government has in mind: offering tangata whenua something in exchange for their right to test their claim of ownership in the courts.

The Treaty of Waitangi does not negate that

You’ve got it around the wrong way: The Treaty precedes the rights of citizens. Their right to equality does not negate the Treaty of Waitangi.

Neil,

Absolutely. Their discourse reeks of entitlement.

Eoipso,

If I can muddy the waters even more for you Lew.

Heh, I see what you did there.

The idea of Foreshore and Seabed ownership arrived much later, for both parties.

You’re right about there not being a colonial concept of foreshore and seabed ownership, but quite wrong that such concepts weren’t in use by tangata whenua. In the Muriwhenua claim (Wai 22) the Waitangi Tribunal found that

The Tribunal, which heard detailed evidence on that particular district, concluded that there was an ‘inner’ zone related to the continental shelf, stretching 12 miles out from shore. The hapū and tribes of Muriwhenua had full control over ﬁshing and passage inside that zone. They claimed the same rights further out, but only insofar as they could be enforced against challengers. In
the ‘Māori idiom the hapū and tribes of Muriwhenua held the “mana” or “authority” of the whole of the Muriwhenua seas’ within a minimum of the 12-mile zone. The nearest British cultural equivalent, the Tribunal found, ‘is to consider that they exercised “dominion” over that part, or “owned” it as part of their territorial waters’. We accept this view that Māori tribes had dominion over their territorial waters as at 1840, and that in the particular circumstances of the Muriwhenua district, it extended for at least 12 miles out to sea.

There’s also a very great deal of contemporary evidence that particular pipi beds, reefs and other undersea resources were considered the possessions of particular hapū.

L

SPC on November 3rd, 2009 at 20:16

There was of course the English concept of the commons and thus the original impulse of Labour was to declare the area “public domain”, rather than assert Crown ownership.

Ultimately what will happen will be primarily an upholding of this public domain, but with some areas recognised as operating with a continuing tradition – both predating (indigenous) the Treaty AND also accounted for within it (cultural taonga). The co-existence of public domain with this “other” factor meant the Crown being specified in the the F and S (the Crown is merely representative of the management of the public domain, the people equal before the law of the nation) was the mistake (Winston was wrong and Labour was forced into the choice of dependence on this wrong man by National’s politics). For of course some rights (such as property and taonga) are privately held.

SPC, yeah, I meant it to be one post but it was already too long. That’s why the cliffhanger :)

My instinct is that you’re right — we’ll get something which looks very much like the FSA but which contains key concessions agreed between tangata whenua and the general tau iwi public. And that’s as it should be — the critical thing is that the solution be arrived at by consultation and good-faith negotiation; by consent, rather than by legislative fiat.

L

Neil on November 3rd, 2009 at 20:23

You’re right about there not being a colonial concept of foreshore and seabed ownership, but quite wrong that such concepts weren’t in use by tangata whenua. In the Muriwhenua claim (Wai 22) the Waitangi Tribunal found that

So much to do with the history of the British Isles is about land and the appropriation there of via colonialism that maybe the histories of communties that were more to do with the foreshore have been overlooked.

Both the Irish and my the Scotts talk about the “land” clearances and that became a focus here on NZ.

Tom Semmens on November 4th, 2009 at 09:22

The problem with your entire argument is it does not take into account the evolving nature of what constitutes indigenous, preferring a static model that fails to recognise the dynamic nature of society.

MikeNZ on November 4th, 2009 at 09:55

Lew
essentially what you are saying is that the Treaty of Waitangi gives Maori ownership of what (interpreted) they own or did own.
Similarly that the treaty gives them pre-emtive rights over assets in the normal course of events that belong to all New Zealanders.

I can’t accept that.
We are a multi-cutural society not bi-cultural and all who are citizens own the crown.
The Maori are not separate from the crown any more than you and I as they are Kiwis.

Neil on November 4th, 2009 at 10:00

I can’t recommend highly enough visiting New Caledonia for comparison.

The post-colonial issues are so much like NZ but different enough to challange. I think it’s one of the few countries whose experience is similar enough to ours to provide a useful mirror and yet it hardly gets a mention.

Not a cheap place to visit but it really does help to shed some light on what’s happening here.

The problem with your entire argument is it does not take into account the evolving nature of what constitutes indigenous, preferring a static model that fails to recognise the dynamic nature of society.

This is an interesting postmodernist position from one who usually scorns such things. The model I use doesn’t exclude evolving definitions of indigeneity, but it does insist that customary definitions of indigeneity are properly recognised and accounted for before new definitions are introduced. The reason for this is that expansion of the definition to include, for example, Trevor Mallard’s ‘I was born in Wainuiomata, so I’m indigenous” (and his unspoken “and therefore I deserve all the same rights as tangata whenua”) ignores the simple facts of NZ’s colonisation and stretches the definition beyond usefulness. This is what postcolonialism is about: resolve the existing problems between colonisers and colonised so that colonisers can become indigenous.

But beyond that, my point is that the claims by tangata whenua to the foreshore and seabed and other treasures do not solely rest on indigeneity, but also rests upon the Treaty and its provisions. We, each of us, live with the consequences of our ancestors’ actions, and the actions of the governments which represented them. That means all tau iwi coming to this country are bound by the Crown’s undertakings in the Treaty, whether they think they should be or not.

MikeNZ, that last bit is to you as well. You might think things belong to ‘all New Zealanders’ but in fact there’s very little which does, and all of that — every square inch of ground, every gallon of water — has been alientated from tangata whenua in some way. They had rights to it before the Crown did, and before you or I did. If you have rights to something those rights don’t just disappear — they’re traded away willingly or taken by force or both. ‘Both’ is the case in NZ. That doesn’t mean that what the Crown does own is illegitimate — plenty of resources were sold fair and square, plenty was gifted, or possession lapsed for other reasons. The Waitangi Tribunal process is a programme of legitimising alienation of resources and providing redress such that those whose resources were alienated are satisfied with the final outcome.

I can’t just turn up to your family farm and claim a stake in it just by being there or on the grounds that I’m a Kiwi too — you’d chase me away with a shotgun and you’d be justified in doing so. That’s precisely what you’re trying to do by claiming the Stephenses and the Chins have rights to the Rawiri’s rights and resources secured in the name of their ancestors before either of the other groups arrived. The signatories to the Treaty made an agreement that, instead of chasing each other around with muskets, they’d compromise and try to live peaceably together. It didn’t work out that way and there was a lot of musket-play in any case, but the agreement was not nullified as a result, and remains in force. You might not like that, but it is a principle which has been repeatedly reaffirmed in law, a foundational tenet of NZ’s constitutional practice.

L

SPC on November 4th, 2009 at 13:59

Before people claim we are the Crown, they should recognise the Crown does not own the private property (which is inherited) of the people. Though the people may collectively own things.

I have always defended the position we are a multi-cultural society in a bi-cultural nation.

ak on November 4th, 2009 at 14:19

Great work Lew. (Just one wee grizzle, the snipes at Labour rankle a touch – particularly to those lefties (and most were) who lost blood, friends, careers etc for their anti-racist stance since the early 60′s and on, and who know full well the true tory/ACT underbelly – and especially only 5 minutes since Orewa One. Incidentally, Brian Rudman currently has a cracker article up on the granny site)

Just to complicate things (or maybe gain a fresh perspective), does anyone know exactly how much foreshore and/or seabed is currently owned – lock stock and barrel – by non-Maori?

I recall from many moons ago private property signs as I pulled up to moor at Durville Isand for example, and know of other areas – albeit caused by erosion, reportedly.

Did any of these owners face any problems and/or public/media angst?

Ag on November 5th, 2009 at 23:22

I reject completely the concept of indigenous people having superior rights before other peoples or ethnos.
Hence the Tangata Whenua that so many espouse.

Why does it necessarily have to be this way?

I see this dispute as an opportunity to rectify an idiotic system of property rights on behalf of all people. I don’t see why customary use rights should not exist for everyone, and tribal rights be recognized as a particular case of those.

Who doesn’t hate some corporation buying up a swathe of property and wrecking the local community’s favourite fishing spot?

Customary rights should be available to anyone.

Tom Semmens on November 6th, 2009 at 11:56

Does calling 80% of the population white motherf**kers fall under the broad get out of jail clause of indigenism?

Tom, if you think indigenism just means “what Māoris do is ok” then you should probably reconsider whether you’re well-enough informed to comment on these sorts of matters.

L

ak on November 6th, 2009 at 13:04

Don’t recall any percentages mentioned Tom – in fact he specifically described the mumfrackers he was talking about; viz the ones that had raped and pillaged the land etc. Why take offence if you’re not included?

A bit like me talking about the two Swiss arseholes that ripped off my rent money many years ago – absolutely factually correct, and only like to give offence to a wider Swiss public in the event that it were already primed with an underlying anti-kiwi racism itching for an excuse to lash out.

Tom Semmens on November 6th, 2009 at 13:18

Tom, if you think indigenism just means “what Māoris do is ok” then you should probably reconsider whether you’re well-enough informed to comment on these sorts of matters.